Chief Justice Earl Warren: Number 40, David D. Beck, Petitioner, versus the State of Washington.

Mr. Charles S. Burdell: If the Court please --

Chief Justice Earl Warren: Mr. Burdell.

Mr. Charles S. Burdell: -- Mr. Justice.

The questions involved in this case set forth at pages 6 and 7 of the petitioner's brief and the first question is this, Were the petitioner, in this case, a prominent labor union official, has been subjected to continuous, prolonged, and sustained, extensive, enhancive and adverse publicity in all media of communication throughout the judicial area in which he lives and is tried, must the state provide him in his grand jury proceeding where the grand jury which is a fair and unbiased and impartial grand jury.

And this question arises in the State of Washington under circumstances under which accusation may be made by information as well as by indictment.

The second question is, does the petitioner have a right to have the grand jury charged in a fair and impartial manner and in a manner which is not inflammatory and which is -- does not invite the jury's attention, the grand jury's attention to adverse, extremely adverse publicity of a hostile nature which has been circulated about this.

Third question relates to the conduct of prosecutors in the grand jury room with respect to witnesses who are testifying and have testified in favor of or in a manner favorably to the petitioner.

The next two questions relate to failure of the state and the courts of the state to grant a motion for a continuance, the motion for change of venue under these circumstances where there has been this tremendous campaign of vilification, adverse publicity about the defendant, the petitioner in this case.

Our position of course is that the state under these circumstances must provide a defendant with a fair grand jury, a fair method of accusation and that the state must do so both under the Equal Protection Clause of the Fourteenth Amendment as well as under the Due Process Clause of the Fourteenth Amendment.

Justice John M. Harlan: Could I ask you a question?

Mr. Charles S. Burdell: Yes, Mr. Justice.

Justice John M. Harlan: Do your various contentions really amount to two, namely that he got a -- he did not have an impartial grand jury which stands independently as your ground of the attack apart from the trial itself?

Mr. Charles S. Burdell: Yes, Your Honor.

Justice John M. Harlan: And secondly that the trial itself was unfair, is that it?

Mr. Charles S. Burdell: We make no contention in this Court concerning the fairness or unfairness of the trail itself except that we believed that a motion for continuance should've been granted and a motion for change of venue should have been granted.

Justice John M. Harlan: Did you say -- you recognized that the trial itself was fair?

Mr. Charles S. Burdell: Yes, Your Honor, I do except for these qualifications.

Number one, a change of venue or a motion for continuance should've been granted to -- so that we could have tried the case in some jurisdiction where jurors would not have been subjected to the adverse publicity which they were subjected to in Seattle.

Justice Felix Frankfurter: May I -- may I interrupt, is that derived from the same poisoning from your point of view, poisoning mass media which affected your point of view of the grand jury?

Mr. Charles S. Burdell: Yes Your --

Justice Felix Frankfurter: Or some additional one at the time of the trial?

Mr. Charles S. Burdell: A continuation of the same type of thing during the period between the indictment and the trial right up to the time of the trial Your Honor.

Then returning to your question Justice Harlan, in addition to the question of motion for continuance and change of venue, and I think I know what -- what's the point you're making.

The unfair grand jury proceedings were carried over into the trial and infected the trial, infected the conduct of the trial, because the grand jury proceedings were used to impeach witnesses.

The grand jury proceedings were mentioned in the course of the closing argument by the prosecutor.

The prosecutor, for example, referring to the grand jury proceedings and the grand jury in the indictment said something to the effect that these grand jurors were not the 17 ogres.

They were just ordinary people like you and me.

The grand -- one of the prosecutors or Mayor of Seattle who is a special prosecutor in the grand jury proceedings testified concerning statements made by the petitioner to the grand jury when he appeared before the grand jury.

And although he testified to certain admissions or statements made by the petitioner in the grand jury when we attempted to obtain the entire grand jury testimony or transcript of the petitioner's testimony in the grand jury, he denied that the court examine the transcript.

Decided that while only this portion related to the witnesses' testimony and we only were given that portion which the trial court thought related to the witnesses' testimony.

So, in those ways as well as in many others, in those way as well as others, the grand jury proceedings were carried over into the trial.

The grand jury proceedings were used at the trial for several purposes and it's our position infected the entire trial proceedings.

Justice John M. Harlan: Is this a fair statement of your position that because of this publicity, it resulted in a biased grand jury which deprived you of a constitutional right.

Mr. Charles S. Burdell: Yes, Your Honor.

Justice John M. Harlan: But if that isn't so, then the grand jury -- is that independently -- doesn't entitle you a relief then you say that the grand jury infected the trial, that atmosphere infected the trial and then on that score, you should be entitled to relief --

Mr. Charles S. Burdell: That is a fair --

Justice John M. Harlan: -- is that it?

Mr. Charles S. Burdell: That is a fair statement although I believe that -- I do not believe that what we might call a fair trial cures erroneous grand jury proceedings which have taken place.

If that were true, then this Court need not have reversed Cassell -- or reversed the Carter case or any of the cases where the court has held that -- or Hoffman or any of the cases where the court has held that --

Justice Hugo L. Black: Well, what I'm getting at -- supposing it were held, I'm not suggesting that it should be or would be, supposing it were held that the -- there is no constitutional right to an impartial state grand jury, you would still say that notwithstanding that, you can take the grand jury atmosphere, as you call it, carried over to the trial and you say that atmosphere infected the trial itself.

Mr. Charles S. Burdell: Yes, that atmosphere infected the trial but as far as the questions before this Court are concerned, they have only been certified to the point of -- should the court have granted a continuance or a motion for change of venue.

Justice Hugo L. Black: But that's only because the -- if the motion for a continuance or a change of venue should have been granted it was because the trial could not have been fairly held because of this publicity in that county, isn't it?

Mr. Charles S. Burdell: Because of the publicity in that county including the publicity relating to the grand jury.

Justice Hugo L. Black: I understand.

Mr. Charles S. Burdell: Now, perhaps a few statements concerning the facts would be of assistance and incidentally the decision of the Washington State Supreme Court which was a decision of four judges on one side and four on the other is recorded at 8 -- page 828 at the record.

Justice Felix Frankfurter: Would you say Mr. Burdell that perhaps your statement of the facts as to your liking or importance, whatever you said, I should take that the essence, this is a question of the legal conclusion of the constitutional significance of what the facts are on this case.

Mr. Charles S. Burdell: Justice Frankfurter, I meant that the facts of the merit, a few statements about the substantive facts of the case.

I think the procedural facts are the most important and the use of my word perhaps was of course poorly chosen because if it weren't really important I wouldn't even be saying some of here so I shouldn't have done that.

Justice Felix Frankfurter: You don't -- have done what's the significance -- what the facts were, the value, the nature, the time relation of what concern should the me -- mass media infected the atmosphere to the grand jury proceedings and the subsequent provision of (Voice Overlap) matters at the trial.

Mr. Charles S. Burdell: That's what I should -- that's what I shall do Your Honor.

The conviction was for embezzlement of the sum of $1900 which is alleged to have been the proceeds of the sale of an automobile which belonged to a union organization of which the petitioner was the president or the chairman at that time.

This automobile was sold while the petitioner was outside of the City of Seattle.

In some manner, the testimony was that the purchaser did not know who owned the car so he made -- he had seen the petitioner driving the automobile so he made the check tables of the petitioner.

And because of this, check was delivered to the petitioner's secretary and she deposited it in the petitioner's bank account.

And then the petitioner testified before the grand jury that when he returned from Seattle -- or to Seattle, found out about it, he returned the money in currency to a bookkeeper of the union.

The bookkeeper before the grand jury confirmed this and said that he had received this amount and other amounts in currency from the petitioner over a long period of time.

Now, the -- as I say, these events took place at the – in 1957 at the height of this period of publicity relating to the petitioner and arising out of the Senate proceedings, the Senate investigating proceedings.

The proceedings were broadcast on television, broadcast on radio, they were disseminated in all newspapers, all magazines distributed in Seattle.

They were displayed on kiosks in the City of Seattle with large headlines.

They were subject of general conversation in the City of Seattle particularly with reference to the subject of the petitioner's assertion of the Fifth Amendment before the Senate Committee which it did of course on the advice of his counsel.

Justice Felix Frankfurter: What is the time span of this --

Mr. Charles S. Burdell: Yes, Your Honor.

Justice Felix Frankfurter: -- of this appeal?

Mr. Charles S. Burdell: The indictment now was returned on July 12.

The grand jury pros -- going backwards, backtracking, the indictment was returned on July 12.

The grand jury was impaneled, I believe, some time in May and the Senate hearings insofar as petitioner was concerned, commenced in March.

The petitioner appeared, I believe, on March 26, 1957.

As soon petitioner appeared before the Senate, he promptly advised the Senate that he would not be able to answer any questions because of the fact that an investigation concerning his income tax affairs was taking place in Seattle and that upon the advice of counsel, he would not be to permit -- he would not be able to answer questions.

Nevertheless, he was interrogated over and over and over again concerning his financial matters or concerning matters relating to the union and he was required upon the advice of his counsel to assert the Fifth Amendment or the privilege under the Fifth Amendment over and over and over again in response to each of these questions.

Justice Felix Frankfurter: Could you count the number of times he was asked questions --

Mr. Charles S. Burdell: No, I didn't --

Justice Felix Frankfurter: -- that he withheld answering because of the Fifth Amendment?

Mr. Charles S. Burdell: Justice Frankfurter, I didn't represent the petitioner at that time and I didn't count the number of times that he asserted the Fifth Amendment but the newspapers did and reported the number of times prominently and I do not recall the number of times but I think it was over a hundred.

The questions made -- and all of these was -- all of these was televised -- over the radio and television.

Justice William J. Brennan: Do you mean by that, the actual interrogation before the Committee and his invoking the privilege?

Mr. Charles S. Burdell: I mean that Your Honor and it got to this point.

It was -- it made such an impression on the people that in December when the trial took place, at least six of the jurors who actually served on the panel or in the trial.

At least six recalled that he had asserted the Fifth Amendment when he testified before the Senate Committee.

Now, these jurors said, “Well they could decide the case without prejudice against to the petitioner anyway.”

But nevertheless, they remembered it and of course this Court as (Inaudible) -- Justice Jackson in Krulewitch and Justice Frankfurter in Pennekamp, and Justice Clark in Irvin versus Dowd and the entire court in the Marshall case certainly now recognizes that there are hidden persuaders which people do not even recognize and that the person who has been subjected to the common conversations about the effect the Fifth Amendment which in Griswold points out, everyone thinks that anyone who asserts the Fifth Amendment is guilty of something, people who have been significant to this type of thing over a long period of time really do not know whether they are prejudice, whether they can decide something fairly, they simply are not qualified to say whether or not that they can anymore than the judges can at times as Justice Frankfurter said in the dissent in the Pennekamp case.

Justice Charles E. Whittaker: Mr. Burdell, I understand that you are not complaining however of the petit jury?

Mr. Charles S. Burdell: Yes, I am complaining in this sense Justice Whittaker that I believe I should have had a motion for a continuance or that my motion for continuance should have been granted or my motion for change of venue should have been granted so that I could have got away from Seattle particularly referring to change of venue motion.

So that I could have got away from Seattle into a jurisdiction where there was less radio and television purposes.

Now, I am in my motion for a change of venue.

I recited in an affidavit that the County of -- I believe it was the county of Whatcom which is North of Seattle was a county where there was not as much radio coverage, not as much television coverage, that the newspapers which were carrying these articles did not have its great circulation on that county, things of that sort.

I wanted to be in that -- in those counties, in one of those counties either Whatcom or Snohomish I think they asked for so that there would be less of this sort of a private case in less of this saturation atmosphere.

Justice Felix Frankfurter: Did you set forth the matter in your motion for a change of venue?

Mr. Charles S. Burdell: I did that --

Justice Felix Frankfurter: Where is that in the record?

Mr. Charles S. Burdell: I didn't Justice Frankfurter.

Justice Felix Frankfurter: (Inaudible)

Mr. Charles S. Burdell: Yes.

I did that Justice Frankfurter.

I set them forth and I want to say that until that time, the law in the State of Washington was that if the -- if a defendant in a criminal case asked for a change of venue upon an uncontradicted affidavit, he got it.

The law was changed in my case.

The -- that in the record is at page --

Justice William J. Brennan: Is that the one at 22?

Mr. Charles S. Burdell: That's probably at 22, about 22, yes.

Justice William J. Brennan: So that's the proceeding -- the motion for continuance --

Mr. Charles S. Burdell: No, that's the motion for continuance and the motion for a change of venue is later on in 643.

Justice Felix Frankfurter: That must -- those must be a set (Inaudible) Mr. Burdell.

Mr. Charles S. Burdell: No, I think on -- I think it's at page 643.

Justice Felix Frankfurter: (Inaudible)

Mr. Charles S. Burdell: With my affidavit right after it, page 644, in the affidavit.

In the affidavit I state that the atmosphere of hostility and prejudice towards the defendant is less than extreme and less intense in the counties of Whatcom and Snohomish because there is only one television station in Whatcom County and none in Snohomish County.

I've been listening to the last case.

We do as well in Seattle as you do Washington, we have four in Seattle including one in Tacoma which is in competition with Seattle which is the CBS station affiliate.

And I'm not arguing the other case on either side as you would see.

I see in this affidavit that newspapers published in King County, in King County where I've read have emphasized and prominently displayed newspaper reports of the adverse and spurging nature to a greater degree than the newspapers published in Snohomish and Whatcom County.

Of course the newspapers in Seattle are larger and have a greater distribution than the newspapers in the other county since Seattle is -- Seattle Times I believe according to one of the affidavits has the distribution of about a 180,000, Seattle Post-Intelligencer has a distribution of about a 133,000.

That is not true, of course, of the smaller newspapers in the other counties.

Justice William O. Douglas: You didn't mention Klickitat County where television reception is practically nonexistent.

Mr. Charles S. Burdell: No, I didn't mention that because everyone goes fishing there so they don't have to watch television Mr. Justice, in Klickitat County.

Justice Charles E. Whittaker: Mr. Burdell, aside from the county mentioned by my Brother Justice Douglas, is there any other county where there isn't fair reception of television in your state?

These two counties that you mentioned in your affidavit, is there a coverage, television coverage, in those counties?

Mr. Charles S. Burdell: There is some -- oh, yes there is some television coverage.

Mr. Charles S. Burdell: To some degree, to some degree but of course these are the -- these are -- to some degree, rural deliveries, these are to some degree people who will buy the newspapers at the corner of a drugstore, in the small towns if they go down there to some degree, these are people who buy it -- who get it on -- by circulation that is by mail and get an edition which was completely different than the edition which is distributed in Seattle because the Seattle edition of course would have the very latest news particularly wouldn't have the news concerning the Senate proceedings of the last minute, the early revision which would have to go in the mail wouldn't have the -- wouldn't have the prominent (Voice Overlap).

Justice Charles E. Whittaker: I understand maybe correctly, maybe not that a criminal defendant in your state does not have a right to a change of venue as a matter of right.

Mr. Charles S. Burdell: He does not have it as a matter of right Justice Whittaker.

But up until this case, the law was that a criminal defendant upon an affidavit which was uncontradicted did have a right to a change a venue as matter of right and I believe the decision is State versus Hillman which I think is in our reports in 42 Washington.

It's -- the cases discussed and cited in our petition for reargument which is at page 897 but the four members of the -- that perhaps should take me back to the decision of the Supreme Court.

That is the Supreme Court of the State of Washington.

When we got to the Supreme Court of the State of Washington, we argued of course the questions that we are arguing here, the questions about the right to a fair grand jury, the right to equal protection before the grand jury, the right to a motion for continuance and change of venue.

Now, four of the judges, the case was heard before eight judges, one judge disqualified himself.

Four of those judges thought that the conviction should be affirmed on every point and one of the judges wrote an opinion for all of them covering every point saying that the entire thing should be affirmed.

And four other judges said that it should not be affirmed because of the fact that the defendant was entitled for a fair grand jury.

He didn't get it, period.

They did not discuss the other questions, those four objected.

But the judges rewrote the opinion from the four -- in favor of affirmance did discuss this question of change of venue.

And his distinction of the Hillman case which had held that a motion for a change of venue based upon an uncontradicted affidavit gives you a right in one.

His distinction in that case was that -- well, in your case counsel, meaning this case, that the -- your statements in this affidavit are nothing more than conclusions and the Hillman case doesn't apply if the -- if the statements are nothing more than conclusions, well, it doesn't hid -- it of course doesn't seem to me that they are conclusions where I put in questions about the number of television stations and the circulation of newspapers and things of that sort.

In addition, I have included in this affidavit a provision which says that jury panels in King County where we tried this case invariably include employees of the Boeing Airplane Company and that a few years previous to this, there was a most bitter jurisdictional dispute between the Teamsters of which the petitioner was the president and the Aeromechanics Union concerning the right of representation and I averted here that that dispute resulted in an attitude of hostility and bitterness between the two unions and the officers of the two unions.

As it turned out, I wound up with, I believe, two Boeing employee jurors, one of whom was the foreman.

Now, I'm saying this because I do not believe that affidavit support the motion for a change of venue was in fact a merely conclusions.

Justice Potter Stewart: Well, Mr. Burdell you're not making a point though, are you, of the change in law, the court did change?

Mr. Charles S. Burdell: No, I'm making a point of refusal to grant me a change of venue and I'm explaining --

Justice William J. Brennan: May I ask about the continuance a moment, the continuance contemplated what if it had been granted?

A trial at a later date in the very county it -- in which was tried?

Mr. Charles S. Burdell: I made both, Your Honor, yes.

Justice William J. Brennan: Yes.

Mr. Charles S. Burdell: The continuance, I made several motions for continuance.

I recall I made one for about five months.

I believe I made it in October 7th when I think I asked for a trial in May of the next year.

Justice William J. Brennan: That is in that very county?

Mr. Charles S. Burdell: In that very county.

Justice William J. Brennan: Yes.

Mr. Charles S. Burdell: And the answer -- my friend Mr. Kennedy says that the court made a finding that I was not entitled to it for some reasons.

The way I recall that finding and it's in the record here and I properly will defer to it in a moment.

The way I recall that finding is that the judge said, “Well, I think you can this fair trial now as you can next May.”

Justice William J. Brennan: (Voice Overlap)

Mr. Charles S. Burdell: Probably precise to what he said and he didn't know he said that.

Justice William J. Brennan: And probably agree with that?

Mr. Charles S. Burdell: Well, I -- my point to him was, at least give me a chance to find out.

Justice William J. Brennan: Now, --

Justice Charles E. Whittaker: Well, somebody has to make that -- somebody has to make that determination known, doesn't it?

Mr. Charles S. Burdell: Someone has to make a determination as to whether or not I could get a fair trial.

Now, I suppose you can say this is his determination that I could get a fair trial.

If we interpret it as being that, I would say he was clearly incorrect in support of those motions for change of venue, we had affidavits, numerous affidavits.

I had talked to lawyers throughout the city and throughout King County.

I think in one affidavit, I indicated or in one statement under oath, I indicated that I had talked to 50 lawyers and that everyone of them had told me that they didn't think I could get a fair trial.

And I told the court about this by affidavit and under oath.

This was never denied by any and I do not believe up until this day, so far as I know, the state or the prosecutors have ever said that they in good faith thought I could get a fair trial.

I do not recall there having said so.

They did not contravene any of my affidavits concerning these subjects.

They did not dispute the fact that the publicity was rampant that the public clamor was widespread.

That the newspaper coverage was the saturation type coverage.

They did not dispute the fact that these attorneys and as well as the gen -- many people who we had talked to who were not attorneys had said that we could not get a fair trial.

They did not dispute any of that.

The only thing that they did that I recall at one point where I was stating under oath, my conversations with attorneys and things of that sort.

One of the prosecutors who was there at that time said that, well, he would always take my word out of court but in this case I had said so many things that he didn't want to go unchallenged so that he just -- they denied it all.

They didn't specifically deny anything.

They really didn't deny anything.

Now, --

Justice Potter Stewart: Mr. Burdell how much, if any, of these pretrial publicity related to the offense for which this man was indicted and tried?

Mr. Charles S. Burdell: Practically none, practically none.

He -- the pretrial publicity in effect said that he was guilty of racketeering, thievery -- in that sense it did.

This is an embezzlement case.

He was charged with having been a thief.

That he had misappropriated funds.

That he was guilty of, I think in one case, 52 acts of misconduct with reference to the union.

And each -- and of those 52 acts, many were acts of misappropriation.

Many of these things were stated in a general way but you couldn't identify, they were -- they were asserted so generally that you couldn't identify this particular $1900.

The petitioner was charged with having misappropriated some $350,000 and I don't believe that this $1900 was included but no one would know for sure.

I think this is $1900 that the -- was not included.

Justice Potter Stewart: But in the McClellan Committee for instance, he was not asked about this particular transaction?

Mr. Charles S. Burdell: He was not Your Honor.

No, he was not.

Justice Potter Stewart: About the sale of this automobile?

Mr. Charles S. Burdell: In the McClellan Committee -- and these are the things that went over the television, the type of christening went along this line.

Mr. Kennedy, the Attorney General would say, “Mr. Chairman we have information indicating that from the year 1949 Mr. Dave Beck took from the union funds some $4812.39 and deposited it in his own bank account.”

And the Chairman would say, “Ask the witness whether he did it.”

And Mr. Beck would have to assert the Fifth Amendment.

That went on time after time.

And then in one case which seemed quite significant to me while -- after Mr. Beck had asserted the Fifth -- the privilege of the Fifth Amendment again saying that he did so from the advice of his counsel.

Senator McCarthy said, “You know that if you are innocent of any wrongdoing then you could answer very simply yes or no.

It is only if you were guilty of wrongdoing that you might incriminate yourself.

You realize that, do you not?”

Of course that was completely incorrect statement which went out over television to millions of people which was not corrected by the Chairman of the Committee or any of the lawyers of -- on the Committee or anyone else.

The statement was made just a few months or rather, the Grunewald decision in this Court.

But after Griswold -- the written -- the statement about how people generally think that one who asserts the Fifth Amendment is guilty of something or other.

Then I have a two or three other notations here at which I intended to read but won't where the counsel or an investigator of the Committee says that we have information indicating so and so and the chairman then said -- asked the Committee if he did it.

And Mr. Beck, the petitioner has to assert the Fifth Amendment, I gather.

Justice William J. Brennan: Now, are these the proceedings you're talking about that were televised Mr. Burdell?

Mr. Charles S. Burdell: These were all televised and the proceedings as indicated here I hope I have time to reach it, these particular proceedings were televised and the newspaper of the next day indicates that the radio station, one principal radio station in Seattle was jammed with telephone calls about these particular proceedings.

Justice William J. Brennan: Was there any (Voice Overlap) the broadcast?

Mr. Charles S. Burdell: I beg your pardon?

Justice William J. Brennan: Was there any rebroadcast?

I --

Mr. Charles S. Burdell: Oh, yes.

Justice William J. Brennan: I take it these interrogations they're doing --

Mr. Charles S. Burdell: Oh, oh yes.

The television film was flown to Seattle, they're flown immediately and shown in the evening.

The radio programs of course were concurrent and I believe that during a portion of the time the television programs in some way were rebroadcast and were concurrent too.

And then were reshown again in the evening.

Justice Felix Frankfurter: Mr. Burdell, may I ask one other question.

Mr. Charles S. Burdell: Yes, Mr. Justice.

Justice Felix Frankfurter: If I heard you right, you said that the grand jury which brought in this indictment, the indictment that brings the case here --

Mr. Charles S. Burdell: Yes.

Justice Felix Frankfurter: -- in May, is that right?

Mr. Charles S. Burdell: Yes sir.

Justice Felix Frankfurter: Now, what I want to know is, what was the last time that the petitioner was a witness before the McClellan Committee?

Mr. Charles S. Burdell: Oh, the last time he was a witness was --

Justice Felix Frankfurter: In this whole sequence.

Mr. Charles S. Burdell: The last time that he was a witness before the McClellan Committee was in March, Justice Frankfurter but I'm not sure that you were here when I answered someone's question which -- in which I said that -- even in December at the time of the trial the jurors --

Justice Felix Frankfurter: Don't go to that.

I want to know --

Mr. Charles S. Burdell: Right.

Justice Felix Frankfurter: -- was March the only time that he was summoned before the McClellan Committee?

Mr. Charles S. Burdell: It was the last time that he appeared before the McClellan Committee but --

Justice Felix Frankfurter: That's 1957?

Mr. Charles S. Burdell: In 1957.

Chief Justice Earl Warren: Well, I read in your brief at page 55 and at page 35, Mr. Kennedy states that at the time of petitioner's appearance before the Committee on May 16, 195 --

Mr. Charles S. Burdell: He returned on May 16, yes.

Chief Justice Earl Warren: Well --

Justice Felix Frankfurter: Well that, that --

Mr. Charles S. Burdell: He did return on May 16.

Justice Felix Frankfurter: Well that that -- and this wasn't the last time.

Mr. Charles S. Burdell: You're -- it's correct, it was not the last time.

The things that I have been reading from this transcript were in March 26 and March --

Justice Felix Frankfurter: I want to know the -- his appearance before the McClellan Committee encloses temporal relation to the sitting of the grand jury which brought in this indictment.

Mr. Charles S. Burdell: He appeared in -- on March and those were the proceedings that I have just read and then he appeared -- he was represented at that time by Mr. Conroy (ph).

He then appeared again in May, I believe May 16th, that time represented by Mr. Williams who also advised him to assert the Fifth Amendment which he did.

Justice Felix Frankfurter: How -- just one day, just one day?

Mr. Charles S. Burdell: Just one day.

Justice Felix Frankfurter: Just one day.

Now, the May --

Mr. Charles S. Burdell: Mr. Justice, it may have gone overnight into the next day but it wasn't a prolonged session.

Justice Felix Frankfurter: And those of -- and the grand jury was already empanelled?

Mr. Charles S. Burdell: The grand jury --

Justice Felix Frankfurter: And notoriously so meaning by notoriously so, that was known to public prints?

Mr. Charles S. Burdell: Yes.

Justice Felix Frankfurter: Now, before the --

Mr. Charles S. Burdell: Justice, may I correct that?

I don't believe it was empanelled but notice had been given that it would be empanelled.

Justice Felix Frankfurter: It wasn't in the newspapers?

Mr. Charles S. Burdell: Yes -- oh yes.

Justice Felix Frankfurter: Now, the May appearance whether it was one day or over the next day, was that televised and broadcast extensively --

Mr. Charles S. Burdell: Yes.

Justice Felix Frankfurter: -- as the March one.

Mr. Charles S. Burdell: Yes.

Justice Felix Frankfurter: And the exhibits of that are in here?

Mr. Charles S. Burdell: Well not exhibits of the television program but affidavits indicating --

Justice Felix Frankfurter: But (Inaudible) --

Mr. Charles S. Burdell: Yes.

Justice Felix Frankfurter: These photos that the newspapers got?

Mr. Charles S. Burdell: Yes, newspapers and magazines and they go right up to the grand jury proceeding.

For example, here's the Time Magazine article dated April 8, a month before which refers extensively to these proceedings and the defendant here is -- another one, that's again part of the April special column in the national affairs section about the petitioner in the -- his -- in the Senate Committee here in the same article there's a great big picture of his so-called lake-front compound if one looks at it closely enough, one can see it's really not on the lake and there's no fence around it.

There's not really a --

Justice Felix Frankfurter: Let me ask you this, were the -- while the proceedings we're going on, beginning in May, commenting in the indictment in July -- on July 12, was that -- was there -- do Seattle given this -- too many cities are given to somehow rather having the secret proceeding of the grand jury disclosing that case in paper?

In short, were the proceedings of the grand jury --

Mr. Charles S. Burdell: Yes.

Justice Felix Frankfurter: -- concurrently --

Mr. Charles S. Burdell: Yes --

Justice Felix Frankfurter: -- publicized?

Mr. Charles S. Burdell: Yes, and they -- yes they were, names that were --

Justice Felix Frankfurter: In relation to the petitioner.

Mr. Charles S. Burdell: Yes, right from the beginning everybody knew that it was the petitioner who was being investigated.

In fact, the trial court -- the judge who empanelled the grand jury said -- told the grand jury that they were going to (Inaudible) --

Justice Felix Frankfurter: They were charged with investigating his affair.

Mr. Charles S. Burdell: The Teamsters Union and officers of the Teamsters Union.

In fact, the charge of the grand jury went something like this, I need not to remind you that the -- of disclosures which have been recently made before some --

Justice Felix Frankfurter: Is that in the record, the grand jury charge in the record?

Mr. Charles S. Burdell: That is in the record and in our briefs, we make it (Voice Overlap) --

Justice William J. Brennan: Is this the (Voice Overlap) -- did I understand that ordinarily an offense of this kind in your state prosecute on information and not on indictment?

Mr. Charles S. Burdell: Ordinarily upon information Justice Harlan.

And that is -- so may I take a moment at this point to discuss that question because as I understand it it's the position of the state that -- well, the erroneous grand jury proceedings don't really mean anything because he could have been prosecuted by information anyway.

Now, it seems to me that -- Justice Harlan, may I come back to that question and go on with a few more answers to the question I was discussing with Justice Frankfurter because I haven't really completed it.

Justice, on May the 3rd, (Inaudible) -- and by the way these newspapers clippings are smaller than they really are and the way they sell them in Seattle -- on the streets is that they display them on what I call a kiosk, I don't know what the real correct name is and they -- so you -- anyone who passes by a corner can see it and of course they're larger than this.

On this day which is May the 3rd, you will notice that there is a sub-headline, this is the Seattle Post-Intelligencer, 133,000 circulation says, “Devin to be special jury prosecutor.”

That is this grand jury.

Devin is the former mayor of Seattle who is named as Special Prosecutor.

The big headline that day is, “Beck indicted on taxes, arrest warrant issued.”

That was the income tax case.

These two things happen to come at the same time.

Here, it's the same different issue of the same newspaper the same day that has a heading about his arrest on the tax evasion case but they haven't heard about Mr. Devin being appointed prosecutor yet.

Here is a clipping relating to the Senate proceedings on May 9th by this time as you could see Mr. -- Mayor Devin has already been appointed Special Prosecutor.

Here, they go back to the Senate Committee and says Senate Probe Lifts Lid on Beck Beer Business.

Here is -- three or four days later it says, “Beck's profit from trust fund of widow told.”

A couple of days later on May the 18th, I think it is, “Trust bill may connect Beck to U.S. mail fraud.”

On May the 15th, it says Beck apparently stole $300,000 from the union.

Here is Chairman McClellan saying in the headline, “Beck misused union position in 52 instances.”

And here are the 52 instances written by Dorothy Berger, The Society or rather the Seattle Times, each one commences misappropriation of so and so and so and so.

Here, the point again that listed, this is May 14th.

Now, this goes right up.

And here's U.S. Newsweek, the case against Dave Beck as the Senators see it.

This goes right up to May 21 and I believe the grand jury was empanelled on May 20.

I'm sure it was empanelled on May 20.

And the grand jurors after empanelment of course they were not kept together as trial jurors are but they were permitted to go home and continue listening to their radios and televisions and read the newspapers and so on.

And on May 21 --

Justice John M. Harlan: May I ask you a question about --

Mr. Charles S. Burdell: Yes, Justice Harlan.

Justice John M. Harlan: -- the law in your state?

Your court, Supreme Court split four-to-four, did it?

Mr. Charles S. Burdell: Yes.

Justice John M. Harlan: More than said that under your law, there's no requirement of an impartial grand jury.

This is a prosecutory body --

Mr. Charles S. Burdell: Of course, yes.

Justice John M. Harlan: By these are prosecutors.

Mr. Charles S. Burdell: Yes.

Justice John M. Harlan: Before it was said that was not so.

Mr. Charles S. Burdell: Yes.

Justice John M. Harlan: What are we to take in -- as the law in your state as being?

Mr. Charles S. Burdell: That's a good question.

I'll answer that in just a moment.

On the day after the grand jury proceedings commenced, here is the article which says McClellan lays many, -- “many criminal” acts to that and so on.

This went right along during the proceeding of the grand jury Justice Frankfurter.

Now, Justice Harlan, in resisting the petition for certiorari, the state as I recall said something to this effect, The Supreme Court of the State of Washington can decide what their law is and they said that because the State of Washington can't decide what its law was, this Court couldn't take certiorari and that the only remedy was to do some -- for the legislature to do something.

You see our -- so I guess they were suggesting that the petitioner go to jail while the legislature makes up its mind what is the law on the State of Washington is but of course that can't be the answer.

I think this Court -- certainly that's the four-to-four decision didn't change in the law any.

The constitution and the statute and the court rules of the State of Washington provide that every decision of the State of Washington has to be a majority of the court.

And in this case there was quite a great deal of discussion about their failure to agree by the majority and their first decision -- this is on page 3 and so I'm not sure what page of the record this is on and -- I can find it.

In their first decision, they had a per curiam besides these two 4-to-4 decisions, they had a per curiam decision which said something of this -- it said this.

One of the judges of this Court disqualified himself from participating in the decision of this case.

The eight remaining judges after numerous conferences are equally divided in their decision for the reasons appearing in the opinions filed.

There are being no majority for affirmance or reversal, the judgment of the trial court stands affirmed.

Then after reargument, they struck out the word “affirmed” so that the last sentence read there being no majority for affirmance or reversal, the judgment of the trial court stands.

That's the way it is right now, although the Constitution of the State of Washington of course provides it in criminal cases we have a right to an appeal.

But they have not affirmed or reversed it just as the judgment of the trial court stands.

And there I am.

Justice Felix Frankfurter: Now, suppose the law of your state, suppose the law of Washington required you, intellectually required you to that of Justice Harlan's question by saying that the law of Washington so far as it is officially declared than that of the legislature of Washington which said the grand jury need not be a fair-minded disinterested body hearing, would you be – would your case, would you be in a different situation if you had to make that answer?

Mr. Charles S. Burdell: Oh yes, I think, I would.

Justice Felix Frankfurter: You mean, you'd be bound that we will then -- that this trial would've been alright from your point of view with reference to the federal constitution?

Mr. Charles S. Burdell: Well, we have the -- you had the Oliver case, I couldn't (Voice Overlap) --

Justice Felix Frankfurter: I'm sorry, I didn't mean to answer it for you.

Justice John M. Harlan: Alright.

I'd like to put to you what's in my mind, namely this.

Are you making equal protection claim?

Mr. Charles S. Burdell: Yes.

I'd like --

Justice John M. Harlan: In other words, that up to Beck's time, the defendants were under state law entitled to impartial grand juries and that he was out of his decision and that must be the difference.

Mr. Charles S. Burdell: That is in -- that is the fact.

That is not the basis of my equal protection argument.

Now, I hope I can answer Justice Frankfurter's question at the same time that I'm answering this one.

Up until -- there is a statute in the State of Washington, it is RCW 10.28.030 and it's in our brief at page 2 and page 3 which provides that any defendant or any person has a right to challenge a grand juror for bias or prejudice.

Now that is -- that means of course a defendant in custody.

It has to mean a defendant in custody the way the statute is drawn and perhaps I'd better read the statute.

Justice Felix Frankfurter: That must be -- might be substituted?

Mr. Charles S. Burdell: I beg your pardon?

Justice Felix Frankfurter: It might mean after he was -- after (Voice Overlap) --

Mr. Charles S. Burdell: It has to mean afterwards to -- otherwise there isn't equal protection and that is what we couldn't get.

It has to mean afterwards otherwise the defendant in custody has the right what the defendant in custody does not have.

And this is -- this is my argument on equal protection.

That statute that reads as follows, somewhat out of order and I apologize for it because the -- at the least of my complaints against the State of Washington is that counsel didn't wake me up this morning and I didn't get myself organized here.

We had an arrangement.

The -- that statute provides that -- I don't find it but do you have it --

Chief Justice Earl Warren: Isn't that one appears on 47 of your brief, a challenge to the panel must be interposed before the grand jury is made up and sworn --

Mr. Charles S. Burdell: No.

Chief Justice Earl Warren: -- provided defendant has prior to that time been held to answer?

Mr. Charles S. Burdell: No, that isn't the one Justice Warren.

The –- it is not on my -- it is sworn out of my brief and I have it here somewhere in --

Chief Justice Earl Warren: Well, is it the --

Mr. Charles S. Burdell: Let me just find it then.

Chief Justice Earl Warren: Is it your Footnote 24 where it says challenged the panel -- challenged the panel, the grand jury shall be allowed to any person in custody or held to answer for an offense?

Mr. Charles S. Burdell: I think it's on page 2 or 3 of the brief where we have all of the statutes.

Justice Potter Stewart: I think it is the very last line on page 2 or -- begins quoting the Texas statute, when in the opinion of the court or state of mind exist in the juror such as would render him unable to act impartially and without prejudice.

Is that what you're --

Mr. Charles S. Burdell: That sounds like from -- that sounds like a quotation from one of our decisions.

Justice Potter Stewart: And that was in Section 10 --

Mr. Charles S. Burdell: Now, that's it.

Justice Potter Stewart: -- 28.030 of the Revised Code --

Mr. Charles S. Burdell: That's correct.

Justice Potter Stewart: -- of Washington --

Mr. Charles S. Burdell: That's it.

Justice Potter Stewart: -- provides that a grand juror may be challenged --

Mr. Charles S. Burdell: That's correct.

Justice Potter Stewart: -- and then quoted words.

Mr. Charles S. Burdell: That's right, (Inaudible).

The grand juror may be challenged --

Justice Potter Stewart: Bottom of page 2, on top of page 3.

Mr. Charles S. Burdell: In other words, if you know you're going to be indicted, if you're in custody, you can have counsel, you can go to the empanelment of the grand jury, you can then challenge the grand juror for bias or prejudice and you can have him excused if he is bias or prejudice.

Now, in our case of course we were not at the empanelment of the grand jury and we're not there to challenge for bias or prejudice.

And the point of this whole thing is that the court asked no one -- the court asked none of the grand jurors if they were biased or prejudiced.

The court -- I think he asked three who were labor men.

There were three labor men on -- who were empanelled and I think he asked them if they were biased or prejudiced.

He asked no one else.

He did ask them if their service from the grand jury would embarrass them.

But he asked -- did not ask them if they were biased or prejudiced.

Justice John M. Harlan: Was there any effort by your predecessors so far as the record shows to ask the court to interrogate the grand jury (Voice Overlap)?

Mr. Charles S. Burdell: I was counsel then Justice Harlan and I did not attend because it did not seem to me consistent with my view that a grand jury does not have a right to single out a particular defendant before arrest or before a charge in a preliminary hearing, in empanelling a grand jury.

In other words, I do not believe it proper and part of our argument relates to this.

We do not believe it proper where there has been no complaint, no arrest for a court to single out any citizen and say we're going to investigate you, you better be here and look out for yourself.

Justice John M. Harlan: Well, maybe I'm talking about old days but I thought that we don't have time?

Mr. Charles S. Burdell: I don't believe so.

Justice John M. Harlan: Where a special grand jury is brought in for a particular purpose in such a situation?

Mr. Charles S. Burdell: I don't believe so.

In any event, in any event there was no attempt to do this and I think that I feel that I had a right to presume that the court would interrogate for bias and prejudice.

And everyone, I may say, was surprised when we found out – well, let's say I was surprised when I found out that the court did not do so.

Now, after not having interrogated for bias or prejudice, then as I say the court went on and instructed the jury something like this, said that the Seattle is the only place where you can charge this man with some of these things, statute of limitations that run on some of these things.

You have to make your charge here.

And then he said, “I need not to remind you, I need not disclose -- need not remind you of these recent disclosures of the Senate Committee which indicate that the -- that officers of the Teamsters Union included the -- and including the defendant have misappropriated or stolen hundreds of thousands of dollars, money which came out of the pockets of the members of the union, from the members of the union and it is this -- the truth or” -- oh, and then he went on to say, “The defendant, meaning Mr. Beck or officers of the union, has publicly asserted that these things are a loan and it is this truth or accuracy of this if you are to determine.”

Now, that wasn't the question at all because as Justice Stewart said this $1900 really didn't have very much to do with it or wasn't included.

And the question of what the petitioner might have said concerning this, being the $350,000 being a loan or not a loan was not the thing that the grand jury had to determine.

Now, may I then -- with respect to the grand jury proceedings, may I just refer to one or two other items which I think are tremendously important.

And they relate to this question about the right in the State of Washington to accuse by information as well as by indictment.

The interrogation of the witness who testified that the petitioner had given him this money was quite shocking and I use that word deliberately.

My friend, Mr. Kennedy was not one of the four prosecutors who was present at the time.

But this man was threatened.

He was harassed.

He was told that he was committing perjury.

He was asked if he would take a lie detector test.

And when he said he wanted to consult his attorney about it, he was told that he must be lying or else he would immediately agree to take a lie detector test.

The prosecutor said, “We don't think you're telling -- one of the prosecutors said, “We don't think you're telling the truth and we're going to keep you here and after I get through with you, Mr. so and so is going to take over and I'm going to keep you here until we see what happens here.”

Justice William J. Brennan: This was all in the presence of the grand jury?

Mr. Charles S. Burdell: Oh, yes justice.

Right in the very --

Justice Felix Frankfurter: But didn't he offer himself voluntarily as a witness?

Mr. Charles S. Burdell: He offered himself voluntarily as a witness but not -- and he'd -- I'm sure he didn't offer himself --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Charles S. Burdell: -- to that sort of thing.

Justice John M. Harlan: I suppose that under your law, the prosecutor had met on the opening of the trial with clear objections that this grand jury for the turning around of (Inaudible)

Mr. Charles S. Burdell: No.

That is just the point, Justice.

That is just the point.

And by the way may I say one other -- I think I have time before I get to that just to refer to one other remark that was made in this grand jury room.

One of the other remarks that was made was, “Don't you realize that no one in this grand jury room, no one in this room believes you're telling the truth?

Everyone believes you're lying.”

Now, I noticed in the counsel's brief, he has a long summarization of the testimony of this witness which he says demonstrates inconsistencies.

Now, the trial court when we asked for the -- if we can see that grand jury testimony so there were no inconsistencies in it and that's one reason we couldn't see it but the counsel says it was inconsistent.

But the point is it's not for counsel now or nor was it for the prosecutor at that time in front of the grand jury to say that or to influence the grand jury by saying we don't believe you therefore nobody should believe you it was for the grand jury.

Well, that type of statement for the prosecutor to determine whether or not this man was telling the truth and if he were telling the truth then the defendant would not have been indicted.

Justice Hugo L. Black: Is that quoted in your brief?

Mr. Charles S. Burdell: Yes, that is in the -- that's in the brief.

Justice Hugo L. Black: You don't recall the page?

Mr. Charles S. Burdell: You mean the --

Justice Hugo L. Black: It's alright.

I don't want to delay you.

Mr. Charles S. Burdell: Oh, is that portion of the testimony quoted in the brief?

Justice Hugo L. Black: Yes.

Mr. Charles S. Burdell: The witness.

It is not in the brief because the testimony is so long and there is so many of those things but it is --

Justice Hugo L. Black: I'm talking about the one where you say the prosecutor made these statements.

Mr. Charles S. Burdell: Yes, it is in the record at page -- that interrogation commences at about page 388.

And the entire interrogation goes over to about page 3 -- to about page 476 and the entire interrogation is full of that type of thing Justice Black and the portion that I just referred to is included in that.

Justice John M. Harlan: Now, Mr. Burdell, if the grand jury declined to indict here despite the prosecutor's efforts could the prosecutor then file it on information (Voice Overlap) --

Mr. Charles S. Burdell: Yes he could and the important point in that connection is this, it seems to me that in the first place the mere -- of course generally speaking, the mere fact that one can return an information is not any reason for granting or for refusing to dismiss again for an indictment where there have been improper grand jury proceedings.

We have never -- let's say the antitrust laws which can be -- if you were -- accusation will be made for client information where a -- there has been an unauthorized person in the grand jury room or the wrong grand jury considers the matter of something of that sort.

It never occurred to anyone to say that -- well, they could proceed by information anyway so we will not pay any attention to this error in connection with the indictment.

But here where a witness has been treated in this manner I believe this indicates that there is all the more reason for seeing to it that the grand jury proceedings must be handled correctly because here is what the prosecutor could -- can do.

He can call a grand jury proceeding and he can get this wit -- the possible defense witnesses in there.

He can treat them in this manner.

He can create a free trial impeachment program for himself then dismiss the whole thing and then turn around and file information which I think is quite improper and not the function of the grand jury at all.

Chief Justice Earl Warren: Well Mr. Burdell, when a procedure under information does -- do you have a preliminary hearing there before a magistrate?

Mr. Charles S. Burdell: Sometimes but not always.

Chief Justice Earl Warren: Can the district attorney file an information direct in the --

Mr. Charles S. Burdell: Yes.

Chief Justice Earl Warren: -- superior court and place them on trial without any --

Mr. Charles S. Burdell: Yes.

Chief Justice Earl Warren: -- without any -- he can.

Mr. Charles S. Burdell: Yes, they can do that but not the -- but where there is no procedure in the statutes which permits a pretrial discovery and the setting up over an impeachment thing like this was and then in information basis.

Mr. Charles S. Burdell: -- may I give Justice Black the page number that he asked me about, the quotation about, “We know exactly what you were trying to do and no person in this room believes you,” that's at page 436 of the record.

Chief Justice Earl Warren: Mr. Kennedy, you may proceed.

Argument of James E. Kennedy

Mr. James E. Kennedy: The complete answer to the problems involved in this case is found in the examination of the voir dire examination, the empanelment of the trial jury.

That jury was very carefully questioned by the court and counsel for both sides and each of the jurors that finally served on that jury had no continuance, no preconceived disposition for the defendant in this case.

And we're able to act impartially and all parties accepted those jurors.

None of those were challenged for cause.

Now, petitioner's position in here is that --

Justice John M. Harlan: Is that (Inaudible)?

Mr. James E. Kennedy: None.

With the exemption that prior to even commencing the empanelment, challenge for cause interposed towards the panel in general, just everybody in general, but then the jurors were called.

They were examined, some excused for various reasons and the 12 that finally sat and heard the case, none of those were challenged for cause.

They were all accepted by the court and both parties.

Now, petitioner had claims that the publicity from these --

Justice Felix Frankfurter: You mean, that's the final answer?

Mr. James E. Kennedy: Yes, I do.

Justice Felix Frankfurter: I infer from that that you think because the petit jury was fairly selected unassailable in its competence and that the trial was not subject to a constitutional attack.

That is of the final answer to your advice in the selection of the grand jury.

Mr. James E. Kennedy: I do (Voice Overlap) --

Justice Felix Frankfurter: Is that your proposition?

Mr. James E. Kennedy: Yes, that's my proposition.

Justice Felix Frankfurter: So what do you do with the series of cases going back 75 to 80 years beginning with Neal against Delaware, 103 U.S. which says that if a grand jury is selected in disregard of a fair and appropriate selection of colored members of the community, that vitiates the grand jury indictment?

Mr. James E. Kennedy: I think the answer there is that the objection to exclusion because of race is state action which is a direct violation of a mandate of the Constitution.

Any state action taken in -- discrimination based on race is just void from the start as to it --

Justice Felix Frankfurter: Then you think a -- do you think a claim under due process that a grand jury must be a fair-minded body and not be hell-bent on indicting, I'm assuming -- I'm not suggesting that's this case.

There is – does this raise a constitutional question?

Mr. James E. Kennedy: I'm not sure I understand your question.

You're saying --

Justice Felix Frankfurter: I'm assuming that a grand jury must be disinterested and not on indictment propelled unfair minded body, I'm starting with that as the starting point.

Mr. James E. Kennedy: Starting with that premise.

Justice Felix Frankfurter: With that premise.

Well, that's the premise of -- after all; the Constitution doesn't say a grand jury must have a fair proportion of colored citizens, it doesn't say that at all.

Mr. James E. Kennedy: No, but it says that states cannot discriminate against person because of race.

Justice Felix Frankfurter: And it also says that states can't try people without due process of law.

Mr. James E. Kennedy: Yes, it does.

Justice Felix Frankfurter: And due process of law is a great big concept filled in by a lot of notions of what does or does not constitute fundamental unfairness.

Justice Felix Frankfurter: But the fact that it does go to your complete answer because as I understand you said this is a complete answer to say that the petty jury was fairly selected.

Mr. James E. Kennedy: Yes, in this case.

Justice Felix Frankfurter: And if that's no more of a complete answer in one case than in the other so far as I can see.

Mr. Justice Jackson would -- I must -- I'm bothered to say with a great deal of course thought that all -- all those cases were wrong.

I don't understand that argument getting with me or not in the brief.

But if you start with those cases, I do not see the answer that you've just made in a situation in which -- starting with an assumption that the grand jury was biased in the -- selected so that there couldn't be a fair judgment by it which to me may well be fall under due process.

How is that any different from a biased grand jury before colored citizens on it, although no objection is taken to the petit jury and no claim is made that the petit jury trial was unfair?

Mr. James E. Kennedy: Well, the cases in which a -- state courts have been reversed because of racial discrimination including the jury panels, the grand jury panels, but that is state action which is void.

If it discriminates, it's based on irrelevant invidious criteria in selecting jurors on which you're going to accuse.

Now, when you get to that problem of, is this person accused by a biased body or not, there is no such protection in the State of Washington.

Justice Felix Frankfurter: There is a protection in the federal constitution of due process and the claim that you must support is that it is -- that a biased -- a concededly -- for purposes of this argument, the (Inaudible) that a concededly biased prejudiced propelled grand jury is unrelated to the requirement of due process, you must say that.

Mr. James E. Kennedy: Well I'm -- I refer the court to the decisions of this Court which have held that illegal action of state officers prior to trial are relevant under due process and equal protection question only if that action affects the trial on the merits.

Now, the only exception I'm able to find or that I find in the briefs here is this question of racial discrimination.

Justice Felix Frankfurter: But, I don't think you can sustain that proposition you've just enunciated in your recent petitions to this Court.

Mr. James E. Kennedy: Well, then I'll proceed and try to sustain the proposition that this trial jury was fair and then I can proceed and perhaps answer the rest of the questions.

Justice John M. Harlan: Could I ask you one question, (Inaudible) do you happen to know whether (Inaudible)?

Mr. James E. Kennedy: I'm not aware of that.

I don't know and I don't think it would be a material anyhow because I think that particular indictment would be invalid.

Now, that brings up Mr. Justice Jackson's dissent in I think it was the Cassell against Texas case.

Now in that case, I believe that was the only case where the grand jury was selected from a discriminated body but the petit jury, Negroes were not excluded from it and Mr. Justice Jackson dissented quite strongly on the basis that it could have made no difference in the trial itself and --

Justice John M. Harlan: May I take just one (Inaudible).

Do you know what the issues (Inaudible)?

Mr. James E. Kennedy: I'm unable to find any.

I find the one --

Justice John M. Harlan: The lower courts have indicated otherwise.

Mr. James E. Kennedy: Yes.

The district courts have indicated it is not necessary.

Justice John M. Harlan: (Inaudible)

Mr. James E. Kennedy: There is one case I cited in my brief where I pointed out that it's not clear whether federal grand juries have to be unbiased and there's some indication by one fairly recent decision of this Court, possibly this Court would inquire into that question if there was an objection made that the federal grand jury was unbiased, but it's never been decided here as the federal grand juries that district courts hold, I'd find then it hold to the contrary.

Justice Felix Frankfurter: We wasted a lot of time in discussing whether all of hearsay evidence is sufficient to justify an indictment if what you say is so.

I can't imagine a clearer case of -- if bias is immaterial, I mean if -- what I call an indictment for a fair grand jury.

That's -- doesn't depend on due process, then what difference does it make.

Why should we inquire to what's before the grand jury?

Mr. James E. Kennedy: I think this Court inquires into that as an exercise of its supervisory powers over the federal courts and it does not reach the due process clause.

Justice Felix Frankfurter: Does that go on McNabb?

Mr. James E. Kennedy: Pardon?

Justice Felix Frankfurter: Does that decision go on McNabb that under McNabb, the -- they have control over what's decent and good apart from what's required?

Mr. James E. Kennedy: Yes, I think that's the distinction between the exercise of this Court's --

Justice Felix Frankfurter: Well, I understand if it is supervisory jurisdiction but --

Mr. James E. Kennedy: Then it's a matter for the appropriate appellate court and it's not a federal constitutional question.

Justice Felix Frankfurter: Well, I put it to you in what Justice Jackson out, I have great difficulty in seeing the difference between a constitutionally required protection such as the Fourteenth and Fifteenth Amendment and the generality of the Due Process Clause.

I can see that you may not bring yourself within it and that's what you're going to show us.

In fact, still bring even on the assumption that it is relevant, that which you're going to deal with, aren't you?

Mr. James E. Kennedy: Yes.

Justice Felix Frankfurter: Alright.

Chief Justice Earl Warren: What is the law in Washington concerning the fairness of grand juries, the requirement of any court fairness of a grand jury?

Mr. James E. Kennedy: That is in the state of doubt.

The Washington Court is unable to agree as to what the law is in Washington.

Chief Justice Earl Warren: Have there been any decision prior to this time that has enunciated it?

Mr. James E. Kennedy: No.

There have been two, I believe, cited by petitioner where there has some dictum that indicates it is the policy of the court to see that fair and impartial jurors are selected.

And that was -- the one of those as in both of them involved a court -- excused in the jury on it's on motion which was complained about and it was held that in it -- within the power of the court its inherent in its power and it's in keeping with the policy of the state to see that fair and impartial jurors are selected.

Chief Justice Earl Warren: I didn't hear that last. Would you talk a little louder please?

Mr. James E. Kennedy: I said it is based or in keeping with the policy of the state courts to see that fair and impartial grand jurors are selected.

It was dicta.

What its application is as to a voir dire examination is not clear, what is required in the way of voir dire grand jurors is not clear.

The highest court of Washington is in direct disagreement that was the basis for the disagreement and this -- in the Washington State Court.

On the -- all other matters raised by petitioner here as to the change of venue, continuance and the fairness of the trial there is no disagreement indicated by that court at all.

The disagreement solely turned upon what that court believed should be their policy in regard to -- grand juries are selected.

Chief Justice Earl Warren: What do you do with the section of the code in Washington, 10.28.030 which appears as I'm reading it now from page 2 of petitioner's brief?

Mr. James E. Kennedy: Challenges to individual grand jurors may be made by such person for reason of want of qualification to sit as such juror.

Chief Justice Earl Warren: No, that isn't the one I --

Mr. James E. Kennedy: And when in the opinion of the court a state of mind exists in the juror such as would render him unable to act impartially and without prejudice.

Chief Justice Earl Warren: Yes.

Mr. James E. Kennedy: I think that that -- read with the other grand jury statutes reveals that this is a type of thing -- a basis why a private prosecutor who presents the bill to the grand jury to have somebody charged cannot deliberate.

That's expressly forbidden by our statutes also, and I think this is to give a person -- this contemplates a person who is held -- who has a charge filed before a magistrate or elsewhere and he's held to answer and he says now, “This juror dislikes me extremely.

He will bring an indictment anyhow.

He is in the position of a private prosecutor seeking to get me indicted.”

And that person then held to answer to interpose a challenge individually because it's based on the proposition that there might be some person on that body that -- is the attitude that stands in the position of a private prosecutor and he would return an indictment through hatred, envy or malice which is the jurors have to be sworn not to do.

Chief Justice Earl Warren: What difference would it make whether he was under arrest or whether he was out of jail?

Why is it -- why is it you have one rule one way and another rule the other way?

Mr. James E. Kennedy: This is a protection I think -- for a person (Voice Overlap) --

Chief Justice Earl Warren: -- if a man who is in jail -- is man who is in jail under arrest entitled to a fair grand jury, an impartial grand jury, but a man who is out of jail is not?

Mr. James E. Kennedy: I don't think that that reaches what this statute prohibits.

This -- I think a person who is out of jail also is protected from a private prosecutor deliberating on his indictment.

Chief Justice Earl Warren: Well, where do you read that -- how do you read that into it?

Mr. James E. Kennedy: I read that by reading all of the statutes in context, the grand jury statutes, they're the --

Chief Justice Earl Warren: Your court has never said that though, has it?

Mr. James E. Kennedy: No, that's not decided.

Chief Justice Earl Warren: Very well.

Mr. James E. Kennedy: It's a matter yet to find out what do this mean.

Chief Justice Earl Warren: Very well, alright.

Mr. James E. Kennedy: Now, to get back to the trial jury, petitioner's position is that these -- the publicity from these McClellan hearings so infected the community that it was impossible to select fair jurors.

Now, to support that contention, petitioner cites the -- there was several, quite a few, seven or eight or more that admitted when being examined on voir dire that they had prejudice which stemmed from the publicity arising from the McClellan hearings.

But in contrast to that, there was at least 11 that indicated that publicity did not have such an effect.

As to them, you have examples of individual people, have before the court, the Juror Cox.

Chief Justice Earl Warren: You're speaking of the grand jury now?

Mr. James E. Kennedy: No, I'm speaking of the trial jury.

Chief Justice Earl Warren: Of the trial jury.

Mr. James E. Kennedy: It was a Juror Cox at record page 70 who stated the opinions he heard in discussions about the McClellan hearings where jocular toward petitioner rather than showing any animosity.

Juror Dagrine at the Record 78, had heard no hostile statements arising out of this.

Juror Ryan at the Record 90 to 92, he had not read about this case and he had no prejudice against anyone taking the Fifth Amendment.

The only thing he remembered about the McClellan hearings is that McClellan was mad at Beck for taking the Fifth Amendment.

There was Juror Kraatz at the Record 102, he thought that Beck was perfectly right in taking the Fifth Amendment in the McClellan hearings.

Juror Eakin, at the Record 128 just had no particular interest in the case.

Juror Hookichan, at Record 135 had heard both hostile and favorable opinions and thought it proper that he -- that the petitioner took the Fifth Amendment in this particular case, in the McClellan hearings.

There was Juror Wood at the Record 145 to 146.

He approved that some things that Beck had done and didn't approve of other things.

Juror Arlington at the Record 149 was just never much interested in the case.

Juror Hickline at the Record 267 had never had enough interest in the case to form an opinion.

And Juror Hill at the Record 290 had just never paid much attention to the case.

Now, these statements of these jurors would support the argument, that publicity from the Senate hearings just did not have such an inflammatory effect on the public.

And further, to examine the jurors who were excused for prejudice would indicate that also.

There were a number of them excused from prejudice arising out of the Senate hearings, but there were four who were excused for prejudice -- from other things.

Juror Loot said at Record 63 thought he should be excused because of great labor relations between Boeing Airplane Company and the Teamster Union.

Juror Brown at Record 168 to 169 stated he had prejudice towards Beck which arose over a period of years, but it was not from anything in the McClellan hearings, and he didn't think he could be impartial.

There was Juror Myers at the Record 198 to 200. He said he was biased because of his business.

He employs truck drivers who were Teamster Union members and there was Juror Sanderson at Record 207 who said he was biased dating back to 1943.

Now, this illustrates of course all the more reason why the continuance not -- should not have been granted in this case.

Dave Beck was a very prominent and a controversial figure.

He was a labor leader.

He admittedly had done a great deal toward securing many concessions, many benefits for the Teamsters.

He actually stepped on a lot of toes particularly in the area of businessmen.

Almost anything he did at anytime was news.

There was just no probability or likelihood that any publicity about him would die down in the future.

The proper thing to do in such a case is not to postpone this indefinitely or change the venue to another place equally exaggerated as it's called, but the thing to do is take the practical approach, find out if in fact a fair jury can be obtained and in this case, this record pretty conclusively shows that it was.

Now, the petitioner argues that when there is too much publicity or a great deal of publicity, the jurors' answers cannot be relied on in this regard.

Petitioner argues from cases containing similar language.

Now, I think petitioner's argument misses the whole point of those cases.

The most recent I believe from this Court is Irvin against Dowd in 366 U.S. reports I believe.

In that case, I think it was over 90% of the jurors examined had a preconceived opinion as to guilt or innocence, but said they felt they could set that opinion aside and decide the case on the evidence produced in court and it was held that in the set of circumstances presented there that the jurors' answers that they could set aside their opinion could not be relied upon because they subconsciously would not be able to do so.

That is entirely different from jurors who do not have an opinion, who have no bias and say they can act fairly and impartially.

There was no basis whatsoever for saying you cannot rely on those jurors' answers.

And also in regard to the voir dire examination, in the Irvin against Dowd case, it was -- the test was reiterated that just because the juror might have some preconceived opinion does not necessarily disqualify him, but to test is whether he can set that aside and decide the case on the merits.

Now, in extreme circumstances when almost the entire panel is in such a position and that newspaper coverage is so inflammatory and so widespread, if you have all the jurors saying, I already have an opinion on the guilt, but I can set it aside then you can't rely on it.

In this case though, we did in fact select 12 jurors who had no opinion and in effect in the examination here petitioner was even given two extra peremptory challenges.

Juror Cox at Record 71 to 73, he stated in answer to questions by counsel that he had a general prejudice against the petitioner, but it would not affect his fairness in deciding this case.

He was excused for cause.

Now, under the test set out in Irvin against Dowd, he was an acceptable juror and one which counsel should perhaps exercise a peremptory challenge against, but he's not subject to being excused for cause.

There was at -- Juror Hubbell at the Record 195 to 196 stated he hadn't formed a definite opinion.

He was little doubtful about whether he had an opinion.

He stated he was sure he could be fair and impartial in this case, but he could understand why Mr. Burdell would have doubt about him because he had heard a lot of publicity and a lot of things and a lot of questions asked and he was excused for cause and he said he was absolutely certain he could be fair and impartial in this case.

Justice John M. Harlan: Assuming that the -- that there is a constitutionally protected right to an impartial state grand jury, are you going to address yourself to what it is that --

Mr. James E. Kennedy: Yes.

Justice John M. Harlan: -- was violated in this instance?

Mr. James E. Kennedy: I'm just about to get to that.

I have one more point to make here.

So the examination, the voir dire examination pretty conclusively shows that the trial jurors were fair and impartial and had no preconceived opinion.

Also, I believe it was the Handy case that set out the test that when this Court is asked to reverse a state court because of a prejudiced jurors that that must be shown to be a demonstrable reality and not a mere opportunity for prejudice.

Now, I would submit that this record is scarcely sufficient to even show the opportunity for prejudice, looking at the newspaper coverage in this case.

The indictment returned on July 12, in this case, didn't go to trial until December 2nd, it was almost five months, 10 days short to five months.

Now, during that time, it was after indictment, after the McClellan hearings in regard the petitioner were all over there was not much publicity about him.

The newspapers were amazingly objective and factual in reports.

There was no editorializing.

There was no attempt to try this case in the public prints, and almost the only publicity about this particular case was generated by petitioner himself in his various pretrial maneuvers which he necessarily had to make to protect his record, but still he is a public figure and anything of that sort he does is news.

Still it wasn't particularly played up.

It was simple report of matters of public record which the petitioner himself had made as matters of public record.

Also, there was a considerable amount of publicity about the petitioner's activities in his union affairs, his membership campaign and news conferences he had in regard to these things.

There was nothing inflammatory or prejudicial about those, but still again he is a prominent public figure any of these things he does is news, and they're going to be reported.

There is no place in this entire record from the date of the indictment to the date of the trial is there even a hint of any attempt by the newspapers to try the case in print.

There are no press releases or statements by the prosecuting officials.

Justice Felix Frankfurter: You mean this particular charge, $1900?

Is that what you mean? You just said there was no hint of trying the case in print.

Mr. James E. Kennedy: Yes and I even mean petitioner in general though specifically the $1900 charge, but there is a -- several places where rival union leaders would be denouncing back and that would be reported, not particularly prominently.

There were hearings in regard to other persons connected with the Teamster Union which that are reported pretty prominently, but there was almost nothing on this.

There was nothing at all.

Justice Felix Frankfurter: But was there nothing on the -- on his appearances before the McClellan Committee in relation --

Mr. James E. Kennedy: I am unable to recall any after the indictment.

The indictment was returned in July 12.

Justice Felix Frankfurter: And the trial was in December.

Mr. James E. Kennedy: Yes and the last appearance as Mr. Burdell had told the court was on May 16 which was a couple of months before the indictment and the grand jury was empanelled on May 20.

On about May 3rd, it was announced in the newspapers that at the request of the Washington State Bar Association that judges in King County had called the grand jury for the purpose of examining into these matters raised by the McClellan hearing.

I think they specifically mentioned to investigate Brewster and Beck in regard to their activities in the Union.

Justice Felix Frankfurter: Refresh my recollection, I don't mean to suggest that this is the Delaney case, I'm well aware of the fact that that federal case is sought, but what was the time relation in the Delaney case between the publicity that Delaney elicited from the press and the radio and the trial of Delaney.

Mr. James E. Kennedy: Well, Delaney had been indicted and thereafter the Senate commenced those -- the hearings, there was -- calling Delaney, I don't know -- I don't think they were calling Delaney as a witness but there were hearings about him.

Justice Felix Frankfurter: Yes.

Mr. James E. Kennedy: And I think -- now my recollection is better than I think it was no more than a month or two, my recollection is a month but I could be wrong on that, after the hearings that the trial came up and as I recall, the Justice Department had asked the Senate Committee to avoid this subject just -- because of the fact that the trial was pending on the indictment and then he was very severely denounced in that hearing, the Senate hearing shortly prior to trial.

Justice Felix Frankfurter: What was the time relation of the investing -- the publicized investigation into petitioner's income tax problems?

Mr. James E. Kennedy: I haven't got that well in mind.

I think he was indicted.

Justice Felix Frankfurter: Was this running along while the state prosecution was going on?

Mr. James E. Kennedy: My recollection, he was already indicted on the income tax matter when the grand jury was meeting.

I think the indictment came out at sometime close in there.

Justice Felix Frankfurter: How much publicity did that --

Mr. James E. Kennedy: Oh, there is -- that there is a second income tax indictment which came I think about halfway in between.

Justice Felix Frankfurter: How much publicity was after that?

Mr. James E. Kennedy: I think it initially got a big headline on the front page and that was on the articles obtained upon that, and I don't think there's much after that at all or anything.

Justice William J. Brennan: Well, Mr. Kennedy, the motion, at least a motion for continuance apparently one also for change of venue was filed on October and Judge Douglas' disposition is dated October the 11th and as I read it, he doesn't base it on any finding that -- and atmosphere of prejudice and hostility was not then (Voice Overlap) but rather on the ground that the attitude towards the defendant within the King County will not be substantially different in May 1958 than it is at the present time --

Mr. James E. Kennedy: Well --

Justice William J. Brennan: -- will only be slightly different.

Mr. James E. Kennedy: I'd like to call the Court's attention to some local practice in King County.

Justice William J. Brennan: Well, I know but that -- this is what (Voice Overlap) --

There was a motion for I think that is not the order where he got the month's continuance for the time to prepare his defense, I believe also in that order.

Justice William J. Brennan: Is set for trial.

This is the order which set it for trial on December 2nd, 195 -- it's at page 8 of the record.

Mr. James E. Kennedy: Yes.

It's set at -- it granted him a continuance of a little over a month or something for a time to prepare defense and denied the motions for continuance on grounds of prejudice.

That order was entered on October 11 and was argued prior thereto.

The local practice in King County is that when a person moves for a permanent relief and some portion of it is granted that person prepares the order for signature in the light of language the court indicated by its oral ruling.

Now, I think that language of course, I believe you'll find it presented by petitioner's counsel.

Justice William J. Brennan: Yes, it says though, defendant --

Mr. James E. Kennedy: And it's a -- that is a document that would've been prepared by them and I simply -- I think it's rather clear that the court simply wasn't going to quibble over the semantics in the order.

But I don't think --

Justice William J. Brennan: I would suggest this is more than semantics.

This at least is a recital that the courts agree that there was prejudice but putting the trial off for May wasn't going to change that anyway.

Mr. James E. Kennedy: Well, the specific ground for the motion was that the community prejudice would prevent the selection of a fair jury and that motion was heard and argued and denied.

I think implicit in the denial is the court's finding that there is not sufficient community prejudice.

I --

Justice William J. Brennan: What's that -- I am jesting that is not what he -- what's that paragraph?

Mr. James E. Kennedy: He clearly does not say that there was any prejudice existing.

Now, petitioner would have you interpret in there that the case is so hopelessly prejudiced already that there's no sense in postponement, they might as well deny his rights now.

I can't find words to answer that.

I can't feature any court even in the race cases making such a decision.

This motion was raised several times.

There were three different judges that ruled on these different motions and each denied them.

It was thoroughly argued on the basis of community prejudice and that the court was correct, I think it's fairly clearly shown by the voir dire examination.

But even if the court had not made such a finding, the Washington rule of course is that if the lower court is correct for any reason, his order will be sustained even though he might not have recited the correct reasons.

He might be wrong in the reasons he recited, but if his order is correct, that will still be sustained.

Here, we have demonstrable proof that the order was correct because 12 jurors were accepted by both sides.

They also said that they could be fair and impartial.

Nobody challenged them.

Chief Justice Earl Warren: Mr. Kennedy, I don't quite understand what you said about their being not in between the time of indictment and the time of the trial.

I'm looking at page 76 of the brief of the petitioner and it starts out this way, Seattle Times, July 12, that was the day of the indictment, jury indicts Beck and son on the ground of larceny accounts.

The same day, Seattle Times says Kennedy hails jury for indictment, I presume that's another Kennedy.

Mr. James E. Kennedy: They are -- on the same date?

Chief Justice Earl Warren: That's another Kennedy that's not --

Mr. James E. Kennedy: Yes.

That's --

Chief Justice Earl Warren: That's not you.

Mr. James E. Kennedy: We -- the only common ancestors that I'm aware of are in that of Neal.

Then a couple of days later Probe told Sears, paid Beck's way to(Inaudible) and the next one, November 1, corruption astonishing, says Lenny and then it goes into the Beck Jr. affair.

Now, how can you say that those are -- amount to nothing between the time of the indictment and the time of trial?

Mr. James E. Kennedy: I can say it this way.

Few of these are large headlines as would be inferred by the way they're set out in the brief.

A good part of them are the inside pages, they're small articles, several of them relate to the inter-union fights between the AFL-CIO and the Teamsters, the little inter-union squabble they're having.

This is considerably more than a squabble, I guess.

None of it relates to this charge, none of it is particularly inflammatory --

Chief Justice Earl Warren: But it's all corruption, corruption and misconduct on his part, isn't it?

I don't say they seem standing alone, but I understood you to say there was nothing between --

Mr. James E. Kennedy: I said, nothing --

Chief Justice Earl Warren: -- the time of trial -- between the time of the indictment and the time of trial, and it seems to me this is a running fire of --

Mr. James E. Kennedy: There's nothing here that applies to this case or any attempt to try it.

Chief Justice Earl Warren: Well, that wasn't the case you were talking about.

You're talking about his conduct generally and I understood you to say there was nothing.

Mr. James E. Kennedy: Well, if I did say that I was obviously mistaken.

There was certainly, maybe still is.

The point is this is out of -- I'll put an illustration of my brief, I've assigned 35 pages per day per paper as a nominal average that gives over 5000 pages of each paper much to glean these articles, many of which of an inside pages and only remotely relate to the matters at hand and some of them only remotely relate to Beck himself.

Now, I think I pointed out in error is an exemption, there was a good deal of publicity during the trial of his son which occurred in November a couple of weeks before his trial commenced and it was a companion case on substantially identical charges that was embezzling money from car sales which (Voice Overlap) --

Chief Justice Earl Warren: This car sale?

Mr. James E. Kennedy: Well, it was different car sales but they're substantially identical and that again there was no editorializing.

It was factual reporting and the petitioner's trial had been set for prior to his son's and at his request it was put over to afterwards.

That was the request for time in which to prepare defense, and the court granted that because the court thought it was reasonable and granted it but it was the petitioner's action that set this after his son's trial rather than before it.

And again, that was factual reporting limited to that particular case that -- on matters of public record; no surmise, no conjecture, no attempt to convict either one in the newspaper coverage locally at that time.

I'd like to also point out to this Court that there is no sufficient showing in this record that the grand jurors were unbiased -- were biased.

There is quite a bit of derogatory publicity surrounding these McClellan hearings and they were called as a direct result of that, I don't think it's disputed.

To digress on that point for a moment that is an established mode of procedure in Washington.

It is in fact that I'm aware of the only time the grand jury ever is called is for a specific purpose, either to investigate a public official who apparently is doing something wrong or to investigate a case of this sort with the normal procedures are not sufficient.

The access to these books and things cannot be obtained, and it is solely used as a tool of the prosecution, as an investigatory aid and it's an accusatory and investigatory body, in no sense a trial body.

And the specific reason it's called is just because it can secure these records and can get the evidence and they're always called for a specific purpose such as this one as this case was called.

Now, the petitioner on one hand claims that the grand jurors should have been examined as to bias toward him on the other hand, he complains that there was a reference made to him and a charge to the grand jury.

I submit that those positions are inconsistent.

Also, in regard to this empanelment of the grand jury, petitioner complains about the charge because it referred to the Senate hearings and this grand jury was called for the specific purpose of investigating officers of the Teamster's Union in regard to misappropriation of funds.

I failed to see how that can be prejudicial when a standard method of directing grand jury investigations in any situation is to present them with a bill charging somebody with a crime, actually claiming they did commit a crime and asking the grand jury to investigate that.

It certainly is far more prejudicial than the method utilized here where the jurors were told at least twice, they are to inquire into these things and determine the truth or falsity of them.

And they were sworn to present no person through hatred, envy or malice.

There is no indication here that bias or prejudice took any part in bringing these indictments.

I think it is not controlling of course at least a factor to be considered that the petitioner was convicted before the jury demonstrably fair on the evidence adduced by the grand jury.

It was obtained by the grand jury.

That was the basis for the conviction.

It'd be hard to find that they did not have sufficient cause to indict when that very evidence is the evidence which convicted petitioner before a jury who was acceptable to both sides.

Justice John M. Harlan: (Inaudible)

Mr. James E. Kennedy: Well, I think that throughout the argument the briefs, all of this, it's -- the complaint is that we don't have a record of whatever is before the grand jury.

We do have the proposition which is pointed out by the lower court and I think both sides that the evidence used here was only obtainable through grand jury proceedings.

The petitioner has even made reference to the exhibits used to connect petitioner with the crime.

We have these references in the excerpts from closing argument where he points out that Mr. Beck did appear before the grand jury, and he said he authorized the sale of the car, I believe that's in the record around about 310, but there's no dispute that that was the same evidence that I'm aware of in this entire proceeding.

As a matter of fact, there is no claim that they did not have sufficient evidence to bring the indictment.

Chief Justice Earl Warren: -- are there no minutes of the grand jury in this case?

Mr. James E. Kennedy: None, I'm aware of.

Chief Justice Earl Warren: Where did they get the -- where did they get all those questions and the answers of the prosecutors that Mr. Burdell has told us about?

Mr. James E. Kennedy: That -- there was a reporter there who took down all that transpired, at least by statute are supposed to be kept secret at -- on motion of the petitioner, the Superior Court judge in King County had these things typed up because they were the basis that petitioner claimed he needed to inspect this to show that he was prejudiced in the grand jury proceedings.

So the court had them typed up and said they'll be available for appeal.

I don't feel there's any justification for letting them have it now just so you‘ll have every opportunity to protect yourself that the law can allow, he typed them up and had them preserved so that they'll be available to bring up on appeal.

Chief Justice Earl Warren: I see.

They weren't used at the trial then?

Mr. James E. Kennedy: No.

The only extent to which the grand jury proceedings we used in the trial was, I believe, now I'm taking this from petitioner's brief and that's the only one I'm aware of.

One of the prosecutors was brought in to testify as to things that the petitioner had set in the grand jury proceedings on the basis of their admissions of him, and I think in that regard, and Mr. Burdell could correct me if I'm wrong, I believe that the court following I think the federal rule in these matters had that testimony also made available to the court to see if there are any matters where there are inconsistencies, so it would be available for cross-examination if the discrepancies indicated would be necessarily.

I don't know if it was made available or not, part of it was made available to (Voice Overlap) --

Chief Justice Earl Warren: In other words, the -- at the trial they permitted the -- one of the prosecutors the chief prosecutor to come in and testify to what had occurred at the grand jury room?

Mr. James E. Kennedy: He testified to some admissions by petitioner.

I don't think anything else would be admissible under rules of evidence, but admissions by the petitioner in regard to the issues would be admissible of course.

Chief Justice Earl Warren: Is that in lieu of the transcript for the proceedings?

Mr. James E. Kennedy: Well, yes.

I'm not so sure the transcript itself would be admissible though they would have to be identified, but this was just testifying to admissions he made, testifying from memory and now I'd also--

Justice John M. Harlan: Would you -- would you say it was a fair reading of your Supreme Court opinion, the four who voted to sustain the conviction that they recognized that there was prejudice, that there was not an impartial jury but the rest of their decision on the ground that there was no such a crime under state law.

Mr. James E. Kennedy: No, I don't think that would be a fair statement of their position.

Justice John M. Harlan: I'm in page 570 where the majority opinion seems to say, however, the premise is not correct, that is that the jury was not im -- the grand jury was not impartial.

Court says, “However, the premise is not correct unless, unless as the appellants argue our 19 -- our 1954, a grand jury statute requires the grand jury to be impartial and unfair.

That seems to me to be implicitly recognizing not taking issue with the merits of the claim of prejudice, but resting the decision on the ground that it made no difference under state law.

Mr. James E. Kennedy: They rested it on that ground but my recollection of the opinion that they specifically found that there was no proof or no showing in the record that there was bias, but they said even so, it would not be a ground before that line to affirm.

But, they also determined that there was not showing of prejudice in the record but that even if there were such a showing, it would not be sufficient and the other four tells that the publicity attendant upon it together with the method of examination of one particular witness compelled the conclusion that there was bias and prejudice involved in a grand jury proceeding and that dissent as it's confirmed by both sides is solely concerned with the grand jury proceedings and the question of whether there was prejudice around him and there was no disagreement indicated there with any of the determinations by the other four judges that the trial jury was there, that the trial was conducted properly and that a -- there was no error in the trial on the merits.

And I'd also like to refer the court to counsel -- he says that the grand jury proceedings infected the trial for the reason that certain evidence adduced there was available in various ways. Of course that is to start with the purpose of the grand jury proceeding is to get this evidence, but also this evidence, the impeaching of the witness or testifying to admissions by the petitioner, any of these things that counsel refers to are equally available in other criminal cases by either the testimony of investigating police or testimony of persons present at preliminary hearing.

Incidentally in King County, almost 95% of the criminal cases are -- have a preliminary hearing.

It's very, very few.

They are filed directly in the Superior Court, almost invariably in King County.

There is a preliminary hearing on a criminal case in which case you'd have the identical situation at the trial in the merits in regard to things that transpired at the preliminary hearing as far as matters of evidence.

Chief Justice Earl Warren: Well, would you -- would you Mr. Kennedy, wouldn't you there have the protection of the court rule?

Wouldn't you have an unbiased judge receiving the testimony and appraising it to see whether there was probable cause or see whether it was caused through malice or bias or something else?

It -- that doesn't follow what you said, does it?

Mr. James E. Kennedy: Well, yes it does because the committee magistrate has no control over whether we file the information or not.

As a matter of fact, except in an extreme case, he could possibly cause us to be compelled to file an information, but he can dismiss it and determine there's not probable cause and we can go right ahead and file directly anyhow.

Chief Justice Earl Warren: Yes, but he does have the right to dismiss the proceeding if there is a probable cause shown.

Mr. James E. Kennedy: But he can't affect the ultimate outcome at all.

Chief Justice Earl Warren: Well, he affects the ultimate outcome of that proceeding.

Mr. James E. Kennedy: Yes, he has the right to dismiss the -- his proceeding certainly.

It can affect any right of the petitioners.

Chief Justice Earl Warren: And that's the invariable -- that's the invariable procedure that you follow, is it (Voice Overlap) --

Mr. James E. Kennedy: Almost invariable.

Some cases -- most of the time, all -- I'd say 95% of the time we file it before a committee, justice of the peace and presiding committee magistrate and then sometimes the case is disposed off.

There are -- sometimes it's bound over but we almost invariably have a preliminary hearing.

Chief Justice Earl Warren: How often would you say that a presiding magistrate dismisses a complaint on the grounds that there's no probable cause shown and then the district attorney files an information thereafter?

Mr. James E. Kennedy: Well --

Chief Justice Earl Warren: Do you know of any such cases?

Mr. James E. Kennedy: There are some, yes that are relatively recently.

I can't name any off hand.

It does happen.

Normally, there isn't disagreement.

There just normally isn't any big conflict there.

The main reason cases get filed directly instead of having a preliminary hearing is when we don't want to disclose a lot of evidence to the defense.

Actually, it works as a discovery procedure on behalf of the defense a good many times.

Chief Justice Earl Warren: Do you have a discovery procedure?

Mr. James E. Kennedy: No, no, only insofar as the preliminary hearing will operate that statute.

Chief Justice Earl Warren: No, but if you don't have a preliminary hearing and the district attorney just files an information, do you have any discovery?

Mr. James E. Kennedy: We have a -- we have to name witnesses, we have to give the counsel notice of all the witnesses we're going to call and in -- I've never heard of a court denying this motion.

I rather think that under our law, defendant has the right to examine any confession made by a criminal defendant and as to any other evidence that the prosecution have is discretionary with the Superior Court as to whether we have to disclose it to the defendant or not upon proper motion made and they're quite liberal on that.

I had several cases where I've had to make my entire file available to the defendant.

Chief Justice Earl Warren: Well, that's a considerable discovery?

Mr. James E. Kennedy: Yes, it's considered but it's discretion, there's no set procedure except to file a motion and the judge has almost complete discretion and just determines whether in this case he feels in fairness to the defendant, he should have --

Chief Justice Earl Warren: You don't have any such discovery where there's an indictment?

Mr. James E. Kennedy: Oh, yes.

Yes, its -- there's no difference --

Chief Justice Earl Warren: The same thing?

Mr. James E. Kennedy: Oh, yes.

There's no difference.

I also like to refer to petitioner's complaint about the closing argument.

He said that shows more of the infection of the grand jury injected by the prosecution into the trial on the merits.

Chief Justice Earl Warren: Yes.

Mr. James E. Kennedy: Now, he complains about certain language used by the deputy prosecutor which was in rebuttal argument.

Now, I'd like to just call the Court's attention to a bit of language which the deputy prosecutor was answering there.

At the record, page 308, this was Mr. Burdell's closing argument to the jury.

One of the things you told me was that you could consider this case on its merits and that you would not be influenced, you would not be biased, you wouldn't be prejudiced by the rumors and the gossips in a frenzied, insane propaganda that could've been created only by somebody with the insanity of (Inaudible) has created about Mr. Beck.

And further down that page, no matter what you told me, your minds must be subconsciously influenced by the tremendous amount of unfavorable publicity that has been circulated about Mr. Beck almost to the point of saturation of the public press in the radio, in the newspapers repeated and repeated and repeated the Nazi system.

Further down that page, he tells the jury, “He should not be convicted because some group of United States Senators find it convenient all of a sudden to utilize the airwaves in the radio and the television and the newspapers to somehow make some political capital and make political gain.”

Now, in 309 he says, “But nevertheless, Mr. Beck testified as he did before the grand jury, as he did before the grand jury without a lawyer, without a judge in the presence of four representatives of the prosecuting attorney” and further on, he says, “I wonder if some of you by now haven't discovered why it is important for people to take the Fifth Amendment.

I used to won --

Chief Justice Earl Warren: What is that?

I wonder what --

Mr. James E. Kennedy: I wonder if some of you by now haven't discovered why it is important for people to take the Fifth Amendment.

I used to wonder about that myself. Further down the page, but when you go before a grand jury or a court and all you can do is answer the questions put to you by the prosecutors and you don't have an opportunity to say what you mean, you didn't have an opportunity to explain, at that point, the deputy prosecutor objected on bringing in all of these things outside the record and asked the counsel be admonished to confine his argument to the evidence before the jury.

Justice John M. Harlan: Mr. Kennedy, at what point in the trial or in the state court proceedings was the attack on the grand jury, constitution of the grand jury or the impartiality of the grand jury first made?

Mr. James E. Kennedy: It was approximately three months after the indictment.

Justice John M. Harlan: If the attack that's been made at the time of the trial, at the advent of the trial, under your law, could the prosecutor has had -- or supersede the grand jury indictment with --

Mr. James E. Kennedy: Yes.

Justice John M. Harlan: -- the information?

Mr. James E. Kennedy: Yes.

Well, the prosecutor could've joined in the motion, had it set aside.

On the other hand, he filed in information --

Justice John M. Harlan: The first attack was not made until after the trial?

Mr. James E. Kennedy: No, no.

Three months after the indictment, they've heard the trial.

Justice John M. Harlan: After the indictment (Voice Overlap).

Mr. James E. Kennedy: It was timely made -- it's just not quibbled about in Washington about -- did they have to do it in three days after indictment or a week or something --

Justice John M. Harlan: Well, it was made before trial?

Mr. James E. Kennedy: Yes, it was made before trial but it was --

Justice John M. Harlan: Well, at what time, two months before trial.

Mr. James E. Kennedy: That would be approximately two months before trial.

Justice Felix Frankfurter: Two months before trial.

Mr. James E. Kennedy: The only effect that could've had to dismiss it was if he could get an extra date for arraignment, there possibly be more motions, some reasons for getting further delay in the trial but it could not affect the status of the state to go ahead and try this case.

Chief Justice Earl Warren: You wouldn't have to start all over again and --

Mr. James E. Kennedy: No.

Chief Justice Earl Warren: -- and re-arraign him and do all those --

Mr. James E. Kennedy: No.

Chief Justice Earl Warren: And do all the things leading up to trial if he was --

Mr. James E. Kennedy: He'd have to be re-arraigned certainly.

Chief Justice Earl Warren: Yes.

Mr. James E. Kennedy: The arraignment --

Chief Justice Earl Warren: He would be entitled to a new trial date and --

Mr. James E. Kennedy: Yes.

Chief Justice Earl Warren: -- and so forth?

Mr. James E. Kennedy: Yes.

Chief Justice Earl Warren: Well then, it would actually be a dismissal of this proceeding and the institution of a new one that would go along just the same as any -- any new proceeding, wouldn't it?

Mr. James E. Kennedy: Yes.

I think the trial date if it has been dismissed, three months after indictment when the motion was first interposed which would've been, I don't have the date at hand, but I recall it was three months.

That would be August of -- I don't know if it would've affected the trial date or not.

The cases are set by the presiding judge and I don't know whether he was given, I have no way -- I can only guess, but he gave it the same date it had anyhow or another date.

And defendant is entitled to one day after arraignment to enter a plea and to interpose objections toward the indictment or information.

Invariably they are granted much more than that if they requested, there was a -- with the exception that the court will not allow this delay to challenge the information on indictment to affect the orderly setting of the case for trial, but they're very liberal to give it all the time they can use in that area.

Justice Felix Frankfurter: Mr. Kennedy, would the availability of starting state process by the way of information be good answer to the racial discrimination found grand jury indictment?

I know you can --

Mr. James E. Kennedy: No.

Justice Felix Frankfurter: -- differentiate that from other regions but to take a case, suppose some of the cases were disclosed, were filed at state law that there was available indictment by information.

Would that give it an answer to this -- to the application of new doctrine?

Mr. James E. Kennedy: Well, I'm not trying -- I mean that question, I can perhaps --

Justice Felix Frankfurter: I mean --

Mr. James E. Kennedy: -- explain my answer, I think it -- the state could make an answer if they wanted to dismiss their indictment and proceed by information.

Justice Felix Frankfurter: I know that -- of course they could in this case have dismissed the indictment and filed an information and this case would never be here because he wouldn't have been tried under an indictment.

My --

Mr. James E. Kennedy: At least, wouldn't be here on that issue.

Justice Felix Frankfurter: Suppose you did the same things, suppose the same questions arose under the racial discrimination found indictment in a state in which the prosecutor, if the question has been raised or if he thought about it would dismiss the indictment bringing information, would that be a better answer?

Mr. James E. Kennedy: I don't think that it would.

Justice Felix Frankfurter: Is that -- has it been done?

This is all speculated whether even under this case, even this case, after all you could've dismissed the indictment when he objected in October, couldn't you, sua sponte?

And said, “We'll avoid all these legal controversies, all the business that we just filed an information that cuts the ground from under.

You could've done that.

Mr. James E. Kennedy: Yes, we could've.

Justice Felix Frankfurter: But your argument is -- because you could've done it, and didn't, that shows that on the starting point of Mr. Justice Harlan made, the point is no good.

Mr. James E. Kennedy: Yes, it's -- I say it's no good for this reason, the complaint here, the petitioner's complaint in essence that he did not have an impartial accuser.

Well, I filed quite a few cases, I don't think I've ever been impartial.

I don't think there's a constitutional question involved of the fact that a case I had filed and biased by about that.

I have -- I prejudged it, I think the man is guilty, I wouldn't file it and I am biased and I don't think that that violates anybody's constitutional right and that's what petitioner in essence is complaining about here.

He did not have an impartial accuser.

Now, in the race cases that Your Honor refers to, the -- that I think it -- those are best analyzed by Mr. Justice Jackson's dissent where he points out as a disciplinary proceeding and it's the only practicable way in fact of enforcing these rights that these certain states cannot discriminate against these people or they're going to have to go do it all over again because its --

Justice Felix Frankfurter: Mr. Kennedy, I -- as my concurring opinion in that case showed, I had sympathy with his argument as a matter of principle as we say, that the laws in dating that (Inaudible) had -- the decision of this Court had been otherwise and no use of -- dealing with this problem by saying that Justice Jackson's dissent is persuasive.

Mr. James E. Kennedy: I say it -- I think they correctly analyzed the basis for the decision and why it is -- I believe this Court will adhere to those because it is -- as much as anything --

Justice Felix Frankfurter: The fact of the matter is in those cases, the fact of the matter is that an otherwise invulnerable to trial and conviction is nullified because the grand jury was found to had a vice, isn't that right?

That's the upshot.

Mr. James E. Kennedy: Well, I don't think that my -- I see my time is up, but I don't think that's the holding in those race cases.

I think that its limited to state action which constitutes racial discrimination and therefore state action is (Voice Overlap) --

Justice Potter Stewart: Mr. Kennedy, before you sit down, I have one question, a little difference on it if I may.

As I read the two opinions in your Supreme Court, either one grounds it's reasoning in any way on the Unites States Constitution --

Mr. James E. Kennedy: No, it has never been a basis for any decision in the lower courts except to the extent that it was raised by petitioner of course at every stage of the proceedings --

Justice Potter Stewart: Well that --

Mr. James E. Kennedy: -- but the court has never based its decision on that.

Justice Potter Stewart: Never based -- never made this constitution --

Mr. James E. Kennedy: Yes.

It never even saw fit to comment on it because apparently there is actually in fact not a federal question here.

Justice Potter Stewart: Well now (Voice Overlap) --

Mr. James E. Kennedy: (Voice Overlap) --

Justice Potter Stewart: My next question going to be, you do concede that the petitioner has raised this constitutional question at every stage of the proceedings, do you?

Mr. James E. Kennedy: Oh, yes, I concede (Inaudible) particular record in that regard.

Justice Potter Stewart: But you agree with me that it's not been decided by the state court.